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Separation of Powers in Uganda - Coursework

Separation of Powers in Uganda coursework. To what extent does the Executive, Legislature & Judiciary observe separation of powers? Checks & Balances

Question:  “All constitutions pay homage to the basic doctrine of separation of powers and tend to also separate personalities. But even as they do so, there are limits at which you must separate power so the pure doctrine of separation of powers no longer works like Montesquieu envisaged, and instead, scholars have chosen to use the phrase checks and balances… and at the same time recognizing that there is an overlap of these organs of state.

The organs of government are like 3 stones under a pot and each of the functions to ensure that the food in the pot is effectively cooked and also that the pot does not fall over” George Wilson Kanyeihamba JSC in Attorney General versus General David Tinyefuza, Supreme Court Constitutional Appeal No. 1 of 1997.

In light of the above decision, critically examine the applicability of the doctrine of separation of powers in Uganda and the system of checks and balances. (10 marks)

separation of powers in Uganda

DOCTRINE OF SEPARATION OF POWERS

Separation of powers is a political doctrine of constitutional law that embarks on the distribution of powers amongst the three organs of government.

The principle was propounded by French Political Thinker, Montesquieu.

Separation of powers in Uganda is aimed to reduce the effects of abuse of power, dictatorship, absolutism, and many similar traits that may arise from the dominance of a certain organ of government.

The doctrine of separation of powers in Uganda's context still aims to distribute powers amongst the three organs in the framework of government as follows;

The Executive- the Executive serves the role to determine implement and also enforce laws of the country. The executive in Uganda comprises the President, Army, and police.

The Legislature-The legislature is concerned with the duties of formulating laws and legislation. The legislature is made up of the Parliament in Uganda which is the law-making body.

It also includes other delegated sub organs which are delegated by the Parliament.

The Judiciary- This organ serves the duty to interpret and administer the laws made by the legislature.

The Judiciary is made up of the Courts of Justice in Uganda; The Supreme court, The Constitutional Court, The High Court, and other recognized courts

Under the 1995 Constitution of the Republic of Uganda (as amended), the Separation of powers in Uganda  is illustrated as the constitution clearly establishes each organ separately invariant sections establishing their specific roles and duties i.e.

The Legislature under Chapter 6, the Executive under Chapter 7, and the Judiciary under Chapter 8

Application of the doctrine of separation of powers in Uganda;

Executive

Article 99(1) vests the Executive power in the hands of the president. It lays down the duties that the executive is charged with the duty of administering, implementing, and enforcing government policies.

These duties are to be exclusively executed by the executive and not any other organ.

Judiciary

Article 128 of the constitution provides for the independence of the Judiciary. It provides for how the Judiciary shall not be interfered with by any authority or person.

This indicates that the Courts shall have autonomous powers while carrying out their activities of ensuring law and justice.

Legislature

Article 79 (1) vests the power to make laws under the Parliament. This provides that the Legislature and its delegated subsidiary bodies are the only recognized law-making bodies.

As laid out above each organ is charged with unique duties in the framework of government.

Furthermore, as a principle of Separation of Powers, no member of one organ can again possess membership in another organ. I.e. a Judge cannot be a Member of Parliament.

This continues to draw a line on the boundaries among the organs of government each having specified roles in the government system of Ugandan. Thus establishing the Separation of powers in Uganda.

The case of Attorney General V  Major General David Tinyefunza illustrates the balance of power between the Judiciary and the Executive.

Retired Justice Kanyeihamba noted that the courts can only interfere where the acts of the Executive violate the rights of an individual. This continues to show how the arms of the Government are not ready to interfere with the activities of the other.

However, the extent to which the Principle of Separation of powers in Uganda is actualized is minimal.

The doctrine of Separation of powers cannot be fully realized and hence states have then resorted to a system of checks and balances which is a more preferred criterion for regulating the arms of government.

The doctrine of checks and balances in Uganda operates to create a link for power regulation amongst the three organs of government; Legislature, Judiciary, and the Executive.

CHECKS AND BALANCES

The principle of checks and balances refers to the duty, right, and responsibility of an organ of government to check on the activities of the other in a similar vein with the powers to limit the excesses/absolutism of the other organ where necessary.

In the case of Ssemwogerere & Zachary Olum V Attorney Generalthe Referendum and Other Provisions Act was nullified because of the failure of Parliament to follow the requisite procedures.

This shows how unlawful shortcuts, through the Constitution by the Executive and Legislature are avoided hence emphasizing the Rule of Law.

Although the doctrine of separation of powers in Uganda is seen to operate it has been highly abused in Uganda as discussed below

Executive to the Judiciary

In the case of Besigye V Museveni. The President exhibited dissatisfaction with the judges that dissented from the ruling stating that they did not know what they were doing.

This undermines the principle of separation of powers as portrayed by the Constitution.

Executive to Legislature

Furthermore, the Constitutional (Amendment) Act 13 of 2000 was also a result of the executive pressure on the Legislature causing it to disregard the requisite Procedures: The Constitutional (Amendment) Act no. 112000 was later nullified by the Supreme Court consequently.

It should be noted that the Executive in Uganda has consistently overpowered the rest of the other organs as illustrated in the instances earlier. This violates the independence of the Judiciary which is a very vital aspect of the Separation of powers in Uganda.

In a nutshell, the validity of the doctrine of separation of powers in Uganda is not fully dependent on the circumstances. 

The doctrine of Checks and balances is a rather preferred criterion where the organs act as overseers for each other activities to avoid instances of absolutism.

Even under clear provisions by the constitution, some organs are seen to largely interfere and overpower the duties of other organs thus failure of the Doctrine of separation of powers in Uganda.

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1 comment

  1. Well done Counsel